the distinction drawn between children with disabilities and adults with
disabilities, with the added emphasis on the best interests of the former,
shows that an adult with a disability remains an adult with a disability and
ought not to be deemed a ‘child’ for the purposes of the Convention on
the Rights of the Child.^80In an April 2011 Ontario Consent and Capacity Board decision, one of the parties raised
the CRPD in his submissions, “specifically a portion of Article 25 stating ‘that persons
with disabilities have the right to the enjoyment of the highest attainable standard of
health without discrimination on the basis of disability.’” However, the Board “did not
believe the [CRPD] had applicability in this matter. It is unclear what applicability the
[CRPD] has here absent ‘transformation’ into Canadian law.”^81
The Supreme Court of Canada had occasion to consider the CRPD in a 2008 case.
The Council of Canadians with Disabilities intervened in the case and,
In both written and oral submissions argued that at the heart of the duty to
accommodate lays the presumption of the duty to consult with peoples
with disabilities. This presumption stems from Canada’s national policies in
the field and its international obligations as signatory of the UN Convention
on the Rights of Persons with Disabilities.^82
While the Court acknowledged this submission, no other mention of the CRPD was
made in the rest of the decision.
Generally, the method of implementing international human rights treaties in Canada is
to rely on existing Canadian legislation and policies.^83 State parties are generally
required to enact legislation, policies and practices in order to implement an
international treaty. However, as observed by scholars, Canada generally ratifies
international human rights treaties after it has determined that existing legislation,
policies and programs already conform and comply with the principles and obligations
set out in the treaty. On that basis, by ratifying the CRPD, it can be presumed that
(^80) Saporsantos Leobrera v Canada (Citizenship and Immigration), 2010 FC 587, [2011] 4 FCR 290
[ 81 Saporsantos].
82 BS (Re) (2011), CanLII 26315 (OCCB) [BS (RE)].
National Capital Commission v Brown, 2008 FC 733 at para 114, 330 FTR 67 [National Capital
Commission 83 ].
van Ert, supra note 68.